DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.M.F.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3353-13T3

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

T.M.F. and J.M.R.,

Defendants-Respondents,

_________________________________

IN THE MATTER OF J.S.R.,

Minor-Appellant.

_________________________________

December 10, 2015

Submitted November 16, 2015 Decided

Before Judges Lihotz and Fasciale.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FN-11-131-08.

Joseph E. Krakora, Public Defender, Law Guardian, attorney for appellant (Rachel E. Seidman, Assistant Deputy Public Defender, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Melissa H. Raksa, Assistant Attorney General, of counsel; Nicole T. LaFerriere, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent T.M.F. (John A. Salois, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent J.M.R. (Anthony J. Vecchio, Designated Counsel, on the brief).

PER CURIAM

The Law Guardian appeals from a February 19, 2014 order, entered on a second remand, terminating this seven-year-old litigation. We focus on whether the judge followed our instructions to adjudicate a petition for Kinship Legal Guardianship (KLG), previously filed by the New Jersey Division of Child Protection and Permanency (the Division), and then correctly entered a dispositional order consistent with N.J.S.A. 9:6-8.51. We affirm.

In February 2008, the Division became involved with T.M.F. (the mother) and J.M.R. (the father) (collectively defendants). At that time, the mother had dropped defendants' two-month-old baby, who later died from head trauma and hemorrhaging. As a result of that incident, the Division removed J.S.R. (the child), who is now nine years old, from the home. The Division placed the child with a Division approved foster home overnight and then placed him with M.R., his paternal grandmother (the grandmother). The child has remained with the grandmother and is thriving.

In February 2009, the judge conducted a fact-finding hearing concluding that the mother abused and neglected the infant by failing to seek timely medical attention after dropping the baby. The mother subsequently pled guilty to second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, and received a prison sentence.

On March 15, 2010, the court entered an order terminating the abuse and neglect litigation. We reversed that order, remanded, and directed the judge to conduct a fact-finding hearing as to the father and, if necessary, to conduct a dispositional hearing. N.J. Div. of Youth & Family Servs. v. J.R., No. A-3938-09 (App. Div. Jan. 5, 2011).

On the first remand, the judge conducted a fact-finding hearing as directed. He found that the father abused and neglected the child by exposing the child to "substantial risk of harm" when he left the child alone with the mother. The Division then filed a petition to name the grandmother as a kinship legal guardian.

In October 2011, the judge conducted hearings addressing the Division's KLG petition. On November 10, 2011, the court rendered a written decision, indicated that the Division failed to "prove[] its case" for KLG, and denied the petition. Without conducting a dispositional hearing, the judge awarded physical custody of the child to the grandmother and joint legal custody to the grandmother and mother. The court filed an order reflecting that it denied KLG because it entered the custody order. The court then terminated the litigation.

The father appealed from the orders awarding custody, finding that he abused and neglected the child, and terminating the litigation.

We affirmed the order finding the father abused and neglected the child, reversed the custody order, and remanded for the judge to conduct a dispositional hearing. N.J. Div. of Youth & Family Servs. v. T.M.F., No. A-2201-11 (App. Div. Dec. 5, 2013). Although the Division did not cross-appeal from the denial of its KLG motion, we also directed the judge to adjudicate the Division's KLG application on the merits.

On December 5, 2013, the judge issued a written opinion. The judge noted no additional hearing was necessary, explaining he had earlier adjudicated the merits of the KLG request, and amplified his earlier findings supporting his November 2011 conclusion to deny KLG. The judge then conducted the dispositional hearing.

At that hearing, the judge heard testimony from the caseworker, the grandmother, and the mother. The judge also considered the evidence from the October hearings, which was quite extensive. The caseworker testified that the child was thriving in the grandmother's care. She also related how the child asks about his mother and loves his parents, and how the grandmother "has consistently said that she is open to a relationship with [the mother]."

The grandmother stated she desired permanency for the child, would prefer adoption to KLG, and believed contact with defendants was important to the child. Notwithstanding these desires, the judge rejected the grandmother's stated desire to adopt the child as not credible. The grandmother related how she has been the child's caretaker since he was seventeen months old. She described how the father had not visited the child for two years. She reiterated how, prior to the mother's release from custody, she had brought the child to visit his mother on a monthly basis.

The father did not testify and presented no witnesses or evidence. His attorney requested either the child be returned to the father's care, or that the court implement a visitation schedule.

The mother testified briefly on her own behalf. She stated her parole, and its corollary temporary restrictions on contact with the child, would end on January 4, 2015. She stated she loved the child and wanted continued contact with him.

The Division's counsel admitted at the hearing it had tried custody, reunification with the father, and KLG. He acknowledged that

leaving custody -- full legal custody. . . of the child with [the mother] and with [the grandmother], and fashioning some sort of visitation order either now or in the future, that all seems to be a neat way to wrap up the case[.]

The judge recognized the mother was working to improve the situation by working around parole restrictions that would later terminate. He also pointed out how the Division's own expert had recommended against termination of parental rights.

The judge then considered the available dispositions contained in N.J.S.A. 9:6-8.51. He indicated he was skeptical the grandmother would "make decisions in such a way that would include the parents." The judge concluded the grandmother and mother had "what appeared to be a fairly good relationship for a fairly long time." He also remarked that the mother "has taken care of her criminal matter, she[ is] serving her time in jail, paying her debt to society. And I expect that she can weigh in on major issues regarding the child." The judge concluded that giving the mother joint legal custody would not be harmful to the child and viewed the decision as one more akin to consultation.

The judge then reentered the custody order giving the grandmother physical custody of the child and awarding joint legal custody of the child to the grandmother and mother. He also awarded liberal supervised parenting time to the mother and father. Finally, the judge stated any further issues regarding custody and parenting time should be litigated under a non-dissolution docket, and he entered an order terminating the litigation.

On appeal, the Law Guardian argues that the judge failed to adjudicate the Division's KLG petition on the merits. The Law Guardian also maintains that the judge entered a dispositional order that is inconsistent with N.J.S.A. 9:6-8.51. Consequently, the Law Guardian urges us to award KLG to the grandmother.

I.

We begin by addressing the Law Guardian's contention that the judge did not follow our instructions to adjudicate the Division's petition for KLG on the merits. We conclude that the judge followed our instructions on remand.

The Division sought KLG placement for the child under the Kinship Legal Guardianship Act, N.J.S.A. 3B:12A-1 to -7. The statute established KLG "as an alternative permanent placement option without the need for termination of parental rights and 'where adoption is neither feasible nor likely[.]'" N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 223 (2010) (alteration in original) (quoting N.J.S.A. 3B:12A-1c). To appoint a kinship legal guardian, the court must find by clear and convincing evidence that

(1) each parent's incapacity is of such a serious nature as to demonstrate that the parents are unable, unavailable or unwilling to perform the regular and expected functions of care and support of the child;

(2) the parents' inability to perform those functions is unlikely to change in the foreseeable future;

(3) in cases in which the [D]ivision is involved with the child . . . (a) the [D]ivision exercised reasonable efforts to reunify the child with the birth parents and these reunification efforts have proven unsuccessful or unnecessary; and (b) adoption of the child is neither feasible nor likely; and

(4) awarding [KLG] is in the child's best interests.

[N.J.S.A. 3B:12A-6d.]

We accord substantial deference to Family Part judges who preside over proceedings where KLG has been sought. "We will not disturb the factual findings of the trial judge unless they are unsupported by adequate, substantial and credible evidence in the record." N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 210 (App. Div.), certif. denied, 192 N.J. 293 (2007). We adhere to these well-established standards of review primarily "[b]ecause of the family courts' special jurisdiction and expertise in family matters[.]" Cesare v. Cesare, 154 N.J. 394, 413 (1998).

In response to the second remand, the judge stated that

[t]he Appellate opinion indicates that they thought the KLG was denied because custody was granted. Thankful for the opportunity to further explain, this court will try to do so succinctly in the hope that this will be the clearest way of doing so.

The judge referred to his November 10, 2011 written decision, and further amplified in writing the basis for denying the KLG petition. Quoting from his 2011 opinion, he stated

[the mother] is capable of exercising decision making for [the child]. [The grandmother] and [a Division expert] agree on this point and the court accepts that testimony. As such, the evidence preponderates in that she can perform some of the regular and expected duties of parenting. There is no evidence as to how long she will be incarcerated, but there was some testimony by [the grandmother] that [the mother] was already stepping down from a jail facility to a half-way house. Her inability to more fully participate in [the child's] life appears likely to be coming to an end. Unlike [the father], [the mother] engaged in services to address the post-partum depression and other issues she was suffering. As such, the court cannot find that the Division has proved its case for [KLG] and that application is denied.

Further reviewing his November 10, 2011 opinion, the judge recalled how he believed child support would provide more money for the child than KLG.

In his December 5, 2013 amplification of reasons, the judge stated further reasons for his decision to deny KLG, indicating in pertinent part that

prong [one] was not met because . . . [the mother] was carrying out parental functions. Prong [two] was not met for the same reasons and because the foreseeable future showed that she would be able to carry out her parental functions. Prong [four] was not met for the same reasons and because the child support calculation indicated that the child would be entitled to more money and resources than a KLG. The court considered the reliability of a Division payment to the risk of collection and enforcement of child support. The burden on the Division was, and is, clear and convincing evidence. In fact, this court found that the evidence preponderated in opposition to the KLG. The fact that these same things support a particular custody arrangement is both independent of and coincident to the fact that the KLG must be denied on its own merits.

We are aware that the judge denied KLG based on evidence adduced during the October 2011 hearings. Our second remand instructions were to adjudicate the petition on the merits, which we determine the judge did. We disagree with the assertion the judge erred by not conducting additional hearings. We conclude the evidence of record was sufficient to support the judge's findings and conclusions.

II.

We disagree with the Law Guardian's assertion that the judge erred by limiting the second remand to a dispositional hearing and by ordering a final disposition unauthorized by statute. We remanded for a dispositional hearing understanding that the child had been thriving in the physical custody of the grandmother for several years. In maintaining the previously ordered custody arrangement, the judge properly weighed the evidence and concluded the result which was in the best interests of the child.

After the trial court makes a finding of abuse and neglect and before terminating a Title 9 case, it must conduct a dispositional hearing. See N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 399 (2009). A court has several options in determining the appropriate disposition when a child has been removed from the parent who had residential custody

The court may enter a suspended judgment, N.J.S.A. 9:6-8.52; release the child to the custody of the parent or guardian responsible for the child's care at the time of the filing of the complaint, N.J.S.A. 9:6-8.53; place the child with "a relative or other suitable person," N.J.S.A. 9:6-8.54(a); make an order of protection, N.J.S.A. 9:6-8.55; place the offending parent or guardian on probation, N.J.S.A. 9:6-8.56; and/or require the offending person to accept therapeutic services, N.J.S.A. 9:6-8.51(a).

[Id. at 399-400.]

There is ample evidence to support the judge's conclusion that it would be unsafe to release the child to defendants or to either parent individually. Subsequent to G.M., we recognized that "any dispositional review must consider not only whether the offending parent has abated the harm previously posed, but also must consider whether other parties have asserted the child's best interest demands that custody rest elsewhere." N.J. Div. of Youth & Family Servs. v. J.D., 417 N.J. Super. 1, 22 (App. Div. 2010).

Here, the judge determined placement of physical custody of the child with the grandmother, who is "a relative or other suitable person," had been appropriate given that the child was thriving in her care for more than six years. In reaching this determination, the judge has twice now, in 2011 and 2013, applied the familiar N.J.S.A. 9:2-4c best interest factors and decided the mother was fit to exercise some parenting duties while she continues her rehabilitation.

We have recently stated that the holding in G.M. does not limit a Family Part judge's role to solely examining whether an offending parent has remediated the initial harm that led to a child's removal. J.D., supra, 417 N.J. Super. at 21. In J.D., we emphasized that Family Part judges perform a parens patriae role of protecting the interests of children involved in litigation and stated that

a child's safety is the pervasive concern prompting the initiation of a Title 9 action. Children also have a strong need for stability and permanency in their lives. They can suffer harm from a parent's extended withdrawal of solicitude, nurture and care, as well as a pattern of inattention to the child's needs. This conduct frequently leads to bonded relationships with another who can meet the children's needs and psychological injury is caused if those bonds are broken.

[Ibid. (citations omitted).]

As a result, the need for permanency is complicated when safe reunification of a child with a parent is delayed. Ibid. In a situation like the one presented here, where the grandmother has provided several years of successful care for the child, the judge properly examined not only potential reunification of the child and defendants, but also recognized that a different custodial arrangement advanced the child's best interests. See Ibid. (acknowledging that a rigid reading of N.J.S.A. 9:6-8.50 "might yield to the establishment of a different custodial arrangement, which advances the child's best interests").

Although abuse and neglect litigation is supposed to be "commenced, conducted and concluded with extreme dispatch," N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 110 (2011), this litigation has been ongoing since February 2008. As a result, the judge did not abuse his discretion by terminating the litigation. As the judge indicated, any further changes to the custody arrangement are more appropriately addressed in a non-dissolution docket, which involves a changed circumstances inquiry and, ultimately, a best-interests analysis. See G.M., supra, 198 N.J. at 402 n.3.

Affirmed.